Petition for review of the Board of Immigration Appeals' decision summarily affirming an Immigration Judge's denial of cancellation of removal on the grounds that Petitioner had not demonstrated that his removal would cause "exceptional and extremely unusual hardship" to his United States citizen children. 8 U.S.C. § 1229b(b)(1)(D). Under our decision in Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006), that the REAL ID Act restores our jurisdiction to review "constitutional claims or questions of law," 8 U.S.C. § 1252(a)(2)(D), and our decision in Barco-Sandoval v. Gonzales,
Before: McLAUGHLIN, CALABRESI, and SOTOMAYOR, Circuit Judges.
Petitioner Juan Manuel Mendez, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals ("BIA") summarily affirming a decision of an Immigration Judge ("IJ"), which denied Mendez's application for cancellation of removal. In re Juan Manuel Mendez, No. A78 428 394 (B.I.A. Dec. 9, 2005), aff'g No. A78 428 394 (Immig. Ct. N.Y. City Sept. 28, 2004). The IJ denied Mendez's petition on the grounds that he had not demonstrated that his removal would result in "exceptional and extremely unusual hardship" to his United States citizen children. 8 U.S.C. § 1229b(b)(1)(D).
Petitioner argues that the IJ erred as a matter of law by applying the wrong standard for determining whether the hardship caused by his removal would be "exceptional and extremely unusual." Our Circuit's precedent is that "exceptional and extremely unusual hardship" determinations are generally discretionary judgments that we lack jurisdiction to review, De La Vega v. Gonzales, 436 F.3d 141, 145-46 (2d Cir. 2006), unless they raise "constitutional claims or questions of law," 8 U.S.C. § 1252(a)(2)(D); accord Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-39 (2d Cir. 2008). Notwithstanding these precedents, Petitioner asserts that we have jurisdiction to review his claim regarding the construction and application of the hardship standard, arguing that "so far as De La Vega holds that hardship determinations are discretionary, that holding is based on inapplicable reasoning and case law regarding a previous version of the Cancellation statute, which differs in critical ways from the current one."
We disagree with Petitioner that we can disregard the limitations set forth in De La Vega and Barco-Sandoval, and we adhere to our holdings in these cases that we cannot review the accuracy of an IJ's fact-finding or the wisdom of his discretion. Nevertheless, we conclude that Petitioner has raised questions of law that we have jurisdiction to consider, see Barco-Sandoval, 516 F.3d at 39, and, upon doing so, we hold that the BIA, which summarily affirmed the IJ's decision, committed errors of law in denying Petitioner's eligibility for cancellation of removal. Consequently, we remand the petition to the BIA for consideration of whether, absent such errors, a hardship determination is appropriate in this case.
Because the agency has not questioned Petitioner's credibility, we take the facts asserted by him to be true. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005) (holding that, where there is no adverse credibility determination in the decision being reviewed by this Court, we assume that the petitioner is credible). Petitioner entered the United States in 1989, at age fifteen, and has lived in this country ever since. In 1998, he married; his wife is also present in the United States without documentation. Petitioner and his wife have two children: their son, Jesus Manuel, was born in 1992, and their daughter, Daisy, was born in 1999. Both children are United States citizens.
Petitioner's daughter suffers from severe asthma. Petitioner testified that she has about twenty-five asthma attacks a year and that her condition requires the use of a home nebulizer as well as an inhaler. She also requires regular visits to the emergency room for serious attacks.
Shortly after he was born, Petitioner's son was diagnosed with Grade II Vesicoureteral Reflux. This disease causes urine to reflux from the bladder back to the kidneys and liver, causing staph infections, scarring, and tissue damage. Ultimately, the condition can lead to kidney or liver failure. Jesus received treatment for this condition until age seven, at which point tests showed that his kidneys were normal. He must see a specialist every year, however, to ensure that there are no recurrences or lasting effects.
Petitioner testified that there are "not many jobs available" in the part of Mexico that he is from, and that his relatives would be unable to support him and his family if he returned. As a result, he would be unable to pay for his children's medical care or education there. Moreover, there is no doctor in his village in Mexico, and he would have to pay to travel to another city whenever one of his children needed medical care. According to Petitioner, the region of Mexico in which his village is located has few doctors and even fewer specialists. He was uncertain whether the medications for his daughter's asthma would be available there, but he was certain that, if they were, they would be "very expensive."
Additionally, Petitioner's children are unfamiliar with Mexican culture and not fully comfortable speaking Spanish. Petitioner testified that his son is in an honors program and wants to be a lawyer, a doctor, or a police officer. In Mexico, Petitioner did not think he would be able to pay for the education necessary for his son to pursue these fields. In short, Petitioner concluded that relocating to Mexico would be a "disaster" for his children.
The Immigration and Naturalization Service*fn2 served Petitioner with a Notice to Appear on June 10, 2002. Petitioner conceded removability and applied for cancellation of removal. The IJ denied the application, finding ...